- (1.) This Criminal Appeal has been directed against the judgment of conviction and order of sentence dated 29th July, 2004 and 31st July, 2004 respectively, passed by the District and Sessions Judge, Koderma in connection with Sessions Trial Case No. 63 of 1998/42 of 2001 corresponding to G.R. Case No. 506 of 1996, Koderma P.S. Case No. 259 of 1996, whereby the appellants have been acquitted from the charge under Sec. 302 Indian Penal Code but, have been convicted for the offence punishable under Sec. 304 -B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The case of the prosecution as it appear from the first information report is that Malti Devi (deceased) daughter of the informant was married with appellant Vijay Ram about four years ago prior to the date of incident. Malti Devi did not experience happy conjugal life and was subjected to torture and treated with cruelty for want of more dowry. On 17.7.1996 at about 7:30 p.m. Sukhdeo Ram brother -in -law of the informant informed that condition of Malti Devi is precarious. After receiving such information the informant along with relatives and villagers went to the house of appellant and found Malti Devi lying dead on a cot. They had noticed injury on her forehead. On the basis of written report lodged by Darshan Ram (PW -9) Koderma P.S. Case No. 259 of 1996 dated 18.7.1996 under Sec. 304 -B of the Indian Penal Code was registered. The police after due investigation submitted charge -sheet and, accordingly, cognizance was taken. Since the offences for which the accused persons were charge -sheeted were exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions and registered as Sessions Trial No. 63 of 1998. The charges under Sec. 302 of the Indian Penal Code and also under Sec. 304 -B of the Indian Penal Code were framed, but, the accused persons had pleaded not guilty and claimed to be tried. The prosecution has examined altogether thirteen witnesses to substantiate the charges. The learned Sessions Judge at the conclusion of the trial acquitted the appellants for the offence under Sec. 302 of the Indian Penal Code, but, held them guilty for the offence punishable under Sec. 304 -B of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life and, hence this appeal. The appellant Vijay Ram is in custody from the date of pronouncement of the judgment whereas remaining two appellants namely Mathura Ram and Kaushlya Devi have been granted bail during pendency of this appeal. When the appeal was listed for hearing on 1st July, 2015 the appellants remained unrepresented. In such circumstances, vide order dated 1st July, 2015 bail bond of appellants Mathura Ram and Kaushlya Devi have been forfeited and to secure their attendance warrant of arrest had been directed to be issued and to be executed by the concerned Senior Superintendent of Police. In terms of order dated 1.7.2015, compliance has been made which is apparent from letter No. 212/2015 dated 28th July, 2015 which has been sent to this court by the Principal District Judge, Koderma enclosing warrant of arrest executed against the appellants Mathura Ram and Kaushlya Devi and that indicates that they have been remanded to jail custody on 25.7.2015. The appellants namely Mathura Ram and Kaushlya Devi also brought this fact to the knowledge of this Court by filing supplementary affidavit on 5.8.2015. In the circumstances indicated above, now, it is evident that all the three appellants are in jail custody.
(2.) It is further necessary to bring it on record that the appellants had preferred Criminal Revision No. 189 of 2003 before this Hon'ble Court against the order dated 31.1.2003 passed by the learned Sessions Judge, Koderma in S.T. No. 63 of 1998. This Criminal Revision was preferred considering the development which had taken place in terms of compromise. The appellants had filed petition before the Trial Court to recall P.Ws. 1 to 6, 8 to 10 and 12 for their further cross -examination. The Trial Court did not consider the prayer so made and rejected the petition. Criminal Revision No. 189 of 2003 was allowed by this Court on 3.6.2003 and the order dated 31.1.2003 stood set aside and direction was given to the Trial Court to recall those witnesses for their further cross -examination. In view of the order dated 3.6.2003 passed by this Court in Criminal Revision No. 189 of 2003 the aforesaid witnesses were recalled and cross -examined by the counsel for the appellants.
(3.) Learned counsel for the appellants has assailed the impugned judgment mainly on the ground that the charge framed under Sec. 304 -B I.P.C. is defective. The ingredients of Sec. 304 -B are not attracted from the depositions: of the prosecution witnesses, no evidence has been adduced to show that the deceased was subjected to torture soon before her death. General and vague allegation has been levelled that deceased was subjected to torture for want of more dowry. Furthermore, all the material witnesses P.Ws. 1 to 6, 8 to 10 and 12 have given a go -by to their earlier statements in their further cross -examination which has been held after Criminal Revision No. 189 of 2003 Was allowed. Besides the above, the statements of those witnesses are not consistent about the date and year of marriage of the deceased. They are also not consistent about any of the occurrence which had taken place prior to the death of the deceased. Since material witnesses did not stick to the prosecution case and they had changed their version on different interval when they were cross -examined, the impugned judgment of conviction and order of sentence could not be sustained.;